“Manufactured” TCPA Suit Fails For Lack of Standing
This is a TCPA lawsuit over unsolicited calls. Although plaintiff resided in Pennsylvania, she purchased 35 pre-paid phones with Florida area codes. The area codes were selected because they are comparatively economically depressed and thus more likely to get collection calls.
Discovery revealed that she bought the phones with the goal of receiving unsolicited calls and then filing TCPA lawsuits. Plaintiff was asked about this during her deposition, and her testimony is damning. The court quotes extensively from it, but a sampling is below:
q. Why do you have so many cell phone numbers?
a. I have a business suing offenders of the TCPA business — or laws.
q. And when you say business, what do you mean by business?
a. It’s my business. It’s what I do.
q. So you’re specifically buying these cell phones in order to manufacture a TCPA? In order to bring a TCPA lawsuit?
q. So is there another purpose that you use these cell phones for other than –
q. — to — no. So the purpose is to bring a TCPA lawsuit?
q. Does anyone you know ever call you at these phone numbers?
a. No, ma’am.
q. Did you ever use any of these phone numbers to call anyone?
a. No, ma’am
Based on this, the defendant (Wells Fargo) asserted defenses including: consent, that she invited the injury and assumed the risk. The consent defense does not satisfy the technicalities required under the TCPA. The court says, citing to the most recent FCC rules, that the defenses of assumption of risk and invitation of the injury do not apply to the TCPA. During the FCC proceedings, a commenter had specifically requested a bad faith defense in the scenario where a plaintiff manufactured a lawsuit, by waiting to notify the calling party about a number re-assignment, but the Commission rejected this request. While not directly on point, the court says that this means assumption of risk and invitation of injury are inapplicable to the TCPA.
Finally, the court settles on standing and says that plaintiff has not suffered injury in fact. Her testimony reflected that she did not suffer a violation of privacy when receiving the calls. As an alternative to privacy harm she argued that she suffered economic harm, but the court says she cannot allege this either. Citing to the data breach cases and Clapper, the court says that she cannot claim standing based on her loss of phone minutes or the money she expended to purchase the phones. Interestingly, Spokeo only merits a passing reference in the ruling.
Even assuming plaintiff has constitutional standing, the court says she does not have prudential standing. One of the elements of prudential standing is that the litigant’s interests are within the “zone of interests” sought to be protected by the statute, and that’s not the case here. In enacting the TCPA, Congress sought to protect those who suffered the nuisance of receiving unwanted calls, and as someone who purposefully bought phones and sought out calls, she does not qualify.
Ouch, this is bad. The plaintiff’s deposition testimony could not have been worse. Pro-tip: I don’t think you ever want to admit that your are in the business of filing lawsuits.
The plaintiff’s scheme feels very similar to Gordon v. Virtumundo, where the court slammed the plaintiff for manufacturing the claim in question. Another case that falls into this genre is Beyond Systems, where spam emails were routed through out-of-state servers to take advantage of the other state’s spam laws. The courts in these cases relied on slightly different theories, but reached the same result.
I wonder if cases like this will be the proverbial straw that breaks the TCPA camel’s back. It’s the type of case that could get the attention of a legislator who was interested in revising and reforming the statute.
Legal doctrines aside, courts always find a way to turn away plaintiffs who manufacture claims. I wonder if defendant will seek a fee-shifting ruling.
Case citation: Stoops v. Wells Fargo, No. 3:15-83 (W.D. Pa. June 24, 2016)